Citation Nr: 0602151
Decision Date: 01/25/06 Archive Date: 01/31/06
DOCKET NO. 02-16 771 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUES
1. Entitlement to an increased disability rating for
service-connected left knee disability, currently evaluated
as 30 percent disabling for surgical residuals and
10 percent disabling for traumatic degenerative joint
disease.
2. Entitlement to an increased disability rating for
service-connected right knee disability, currently evaluated
as 10 percent disabling for instability and 10 percent
disabling for arthritis.
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
K. Morgan, Associate Counsel
INTRODUCTION
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a March 2002 rating decision of the
Department of Veterans Affairs (VA) Regional Office in Waco,
Texas (the RO).
Procedural History
The veteran served on active duty from October 1985 until
October 1988.
The veteran was granted service connection for a left knee
disability, denominated as residuals of a left knee surgery,
in a November 1997 rating decision; a 20 percent disability
rating was assigned.
In November 1998, the RO received the veteran's claim of
entitlement to an increase in the disability rating assigned
for the service-connected left knee surgical residuals. In
an August 1999 rating decision, the RO granted the claim,
increasing the rating from 20 percent to 30 percent.
In January 2000, the RO received the veteran's claims of
entitlement to service connection for a right knee disability
and for an increased rating for his service- connected left
knee disability. In a June 2000 rating decision, the RO
granted service connection for degenerative joint disease of
the right knee, secondary to the service-connected left knee
disability. Service connection was also granted for
traumatic degenerative joint disease of the left knee. See
38 C.F.R. § 4.25 [separate disabilities arising from a
single disease entity are to be rated separately]; see also
VAOPGCPREC 9-98 [if a veteran has a disability rating under
Diagnostic Code 5257 for instability of the knee, and there
is also X-ray evidence of arthritis, a separate rating for
arthritis could also be based on painful motion under 38
C.F.R.
§ 4.59]. A 10 percent disability rating was assigned for
arthritis of each knee under Diagnostic Codes 5010-5260. The
30 percent disability rating for surgical residuals of the
left knee was continued under Diagnostic Code 5257.
In May 2001, the RO received the veteran's claim of
entitlement to an increased rating for his service-connected
bilateral knee disabilities. The March 2002 rating decision
which is the basis for this appeal denied the veteran's
claims. The veteran disagreed with the March 2002 rating
decision and initiated this appeal. The appeal was perfected
by the timely submission of the veteran's substantive appeal
(VA Form 9) in October 2002.
In February 2004, the veteran presented sworn testimony
during a personal hearing which was chaired by the
undersigned Veterans Law Judge at the RO. A transcript of
that hearing has been associated with the veteran's VA claims
folder.
The matter was previously before the Board in September 2004.
At that time, the Board determined that a remand was in order
and the matter was remanded to the RO via the Appeals
Management Center (AMC) for additional development. That
development was completed, and the AMC issued a Supplemental
Statement of the Case (SSOC) in July 2005.
In July 2005, a separate rating for right knee instability
was granted, and a
10 percent disability rating was assigned therefor. However,
the matter of increased disability rating for the veteran's
right knee disability remains in appellate status. See AB v.
Brown, 6 Vet. App. 35, 38 (1993) [when a veteran is not
granted the maximum benefit allowable under the Rating
Schedule, the pending appeal as to that issue is not
abrogated].
The case has been returned to the Board for further appellate
action.
FINDINGS OF FACT
1. The veteran's service-connected left knee disability
manifests as limitation of motion to 5 degrees extension and
55 degrees of flexion with reports of pain, and
x-ray evidence of degenerative joint disease. There is not
of record competent medical evidence showing ankylosis,
significant scarring, significant tenderness or swelling.
2. The veteran's service-connected right knee disability
manifests as limitation of motion to 5 degrees extension and
80 degrees of flexion, with reports of pain, and x-ray
evidence of degenerative joint disease. There is not of
record competent medical evidence showing ankylosis,
significant scarring, significant tenderness or swelling.
CONCLUSIONS OF LAW
1. The criteria for an increased rating for the veteran's
service-connected left knee disability have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Codes 5003, 5257, 5260, 5261 (2005).
2. The criteria for an increased rating for the veteran's
service-connected right knee disability have not been met.
38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic
Codes 5003, 5257, 5260, 5261 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The veteran is seeking entitlement to an increased rating for
his bilateral knee disabilities. Essentially he contends
that the symptomatology associated with his knee disabilities
is more severe than is compensated by the currently assigned
ratings.
In the interest of clarity, the Board will first discuss
certain preliminary matters. The issue on appeal will then
be analyzed and a decision rendered.
The Veterans Claims Assistance Act of 2000
The Board has given consideration to the Veterans Claims
Assistance Act of 2000 (the VCAA) [codified as amended at
38 U.S.C.A. §§ 5102, 5103, 5103A, 5107]. The VCAA eliminated
the former statutory requirement that claims be well
grounded. Cf. 38 U.S.C.A. § 5107(a) (West 1991). The VCAA
includes an enhanced duty on the part of VA to notify a
claimant as to the information and evidence necessary to
substantiate claims for VA benefits. The VCAA also redefines
the obligations of VA with respect to its statutory duty to
assist claimants in the development of their claims. See
38 U.S.C.A. §§ 5103, 5103A (West 2002). Regulations
implementing the VCAA have been enacted. See 66 Fed. Reg.
45,630 (Aug. 29, 2001) [codified as amended at 38 C.F.R. §§
3.102, 3.156(a), 3.159, and 3.326(a) (2005)].
The VCAA is applicable to all claims filed on or after the
date of enactment, November 9, 2000, or filed before the date
of enactment and not yet final as of that date. The VCAA is
accordingly applicable to this case. See Holliday v.
Principi, 14 Vet. App. 280 (2000) [the Board must make a
determination as to the applicability of the various
provisions of the VCAA to a particular claim].
The Board has carefully considered the provisions of the VCAA
and the implementing regulations in light of the record on
appeal, and for reasons expressed immediately below finds
that the development of the issue has proceeded in accordance
with the provisions of the law and regulations.
The VCAA alters the legal landscape in three distinct ways:
standard of review, notice and duty to assist. The Board
will now address these concepts within the context of the
circumstances presented in this case.
Standard of review
After the evidence has been assembled, it is the Board's
responsibility to evaluate the entire record. See 38
U.S.C.A. § 7104(a) (West 2002). When there is an approximate
balance of evidence regarding the merits of an issue material
to the determination of the matter, the benefit of the doubt
in resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2005). In
Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United
States Court of Appeals for Veterans Claims (the Court)
stated that "a veteran need only demonstrate that there is
an 'approximate balance of positive and negative evidence' in
order to prevail." To deny a claim on its merits, the
preponderance of the evidence must be against the claim. See
Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing
Gilbert, 1 Vet. App. at 54.
Notice
The VCAA requires VA to notify the claimant and the
claimant's representative, if any, of any information and any
medical or lay evidence not previously provided to VA that is
necessary to substantiate the claim. As part of the notice,
VA is to specifically inform the claimant and the claimant's
representative, if any, of which portion, if any, of the
evidence is to be provided by the claimant and which part, if
any, VA will attempt to obtain on behalf of the claimant.
See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v.
Principi, 16 Vet. App. 183 (2002) [a letter from VA to an
appellant describing evidence potentially helpful to the
appellant but not mentioning who is responsible for obtaining
such evidence did not meet the standard erected by the VCAA].
After having carefully reviewed the record, the Board has
concluded that the notice requirements of the VCAA have been
satisfied with respect to the issue on appeal. The Board
observes that the veteran was informed of the relevant law
and regulations pertaining to his claim in the September 2002
SOC and the July 2005 SSOC. Specifically, the September 2002
SOC detailed the evidentiary requirements for an increased
disability rating for the veteran's knee disabilities.
Crucially, the AOJ informed the veteran of VA's duty to
assist him in the development of his claim in a letter dated
October 21, 2004, whereby the veteran was advised of the
provisions relating to the VCAA. Specifically, he was
advised that VA would obtain all evidence kept by the VA and
any other Federal agency. He was also informed that VA
would, on his behalf, make reasonable efforts to obtain
relevant private medical records not held by a Federal agency
as long as he completed a release form for such. The October
2004 VCAA letter specifically informed the veteran that for
records he wished for VA to obtain on his behalf "you must
give us enough information about your records so that we can
request them from the person or agency that has them. If the
holder of the records declines to give us the records or asks
for a fee to provide them, we'll notify you of the problem.
It's your responsibility to make sure we receive all
requested records that are not in the possession of a Federal
department or agency" [Emphasis in original].
Finally, the Board notes that the VCAA letter specifically
requested of the veteran: "Please provide us with any
evidence or information that you may have pertaining to your
appeal." The Board believes that this request complies with
the requirements of 38 C.F.R. § 3.159 (b) in that it informed
the veteran that he could submit or identify evidence other
than what was specifically requested by the RO.
In short, the record indicates that the veteran received
appropriate notice under 38 U.S.C.A. § 5103 and Quartuccio.
Because there is no indication that there exists any evidence
which could be obtained which would have an effect on the
outcome of this case, no further VCAA notice is necessary.
See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA
notice not required where there is no reasonable possibility
that additional development will aid the veteran].
Duty to assist
In general, the VCAA provides that VA shall make reasonable
efforts to assist a claimant in obtaining evidence necessary
to substantiate claims for VA benefits, unless no reasonable
possibility exists that such assistance would aid in
substantiating the claim. The law provides that the
assistance provided by VA shall include providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. An examination is deemed "necessary" if the record
does not contain sufficient medical evidence for VA to make a
decision on the claim. See 38 U.S.C.A. § 5103A (West 2002);
38 C.F.R. § 3.159 (2005).
The Board finds that reasonable efforts have been made to
assist the veteran in obtaining evidence necessary to
substantiate his claim, and that there is no reasonable
possibility that further assistance would aid in
substantiating it. In particular, the RO has obtained the
veteran's VA treatment records.
The duty to assist also includes providing a medical
examination or obtaining a medical opinion when such an
examination or opinion is necessary to make a decision on the
claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4) (2005). During the course of this appeal, the
RO referred the veteran for VA medical examinations and
opinions in December 2001, and as directed in the Board's
September 2004 remand, again in April 2005. The contents of
these examination opinions will also be discussed below.
These medical reports each reflect that a medical
professional reviewed the veteran's past medical history and
other evidence contained in the claims file in reaching their
conclusions about the status and severity of the veteran's
bilateral knee disabilities.
The Board additionally observes that all appropriate due
process concerns have been satisfied. See 38 C.F.R. § 3.103
(2005). The veteran and his representative
have been accorded the opportunity to present evidence and
argument in support of his claims. The veteran has been
apprised of his options for presenting sworn testimony and
provided sworn testimony before the undersigned at a personal
hearing in February 2004.
Accordingly, the Board will proceed to a decision on the
merits.
Pertinent Law and Regulations
Increased disability ratings - in general
Disability evaluations are determined by the application of
the VA's Schedule for Rating Disabilities (Rating Schedule),
38 C.F.R. Part 4 (2005). The percentage ratings contained in
the Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and their residual conditions in
civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.
§§ 3.321(a), 4.1 (2005).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, such as in this case, it is the present level of
disability that is of primary concern. Francisco v. Brown, 7
Vet. App. 55, 58 (1994).
Rating musculoskeletal disabilities
The Court has held that evaluation of a service-connected
disability involving a joint rated on limitation of motion
requires adequate consideration of functional loss due to
pain under 38 C.F.R. § 4.40 (2005) and functional loss due to
weakness, fatigability, incoordination or pain on movement of
a joint under 38 C.F.R. § 4.45 (2005). See, in general,
DeLuca v. Brown, 8 Vet. App. 202 (1995).
The provisions of 38 C.F.R. § 4.40 state that the disability
of the musculoskeletal system is primarily the inability, due
to damage or infection in parts of the system, to perform the
normal working movements of the body with normal excursion,
strength, speed, coordination, and endurance. According to
this regulation, it is essential that the examination on
which ratings are based adequately portrays the anatomical
damage, and the functional loss, with respect to these
elements. In addition, the regulations state that the
functional loss may be due to pain, supported by adequate
pathology and evidenced by the visible behavior of the
veteran undertaking the motion. Weakness is as important as
limitation of motion, and a part that becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40
(2005).
The provisions of 38 C.F.R. § 4.45 state that when evaluating
the joints, inquiry will be directed as to whether there is
less movement than normal, more movement than normal,
weakened movement, excess fatigability, incoordination, and
pain on movement.
Specific schedular criteria - knee disabilities
(i.) Diagnostic Code 5257
Under Diagnostic Code 5257, the following levels of
disability are included:
Recurrent subluxation or lateral instability:
30 % severe;
20 % moderate;
10% slight.
38 C.F.R. § 4.71a, Diagnostic Code 5257 (2005).
(ii.) Arthritis
Under Diagnostic Code 5010, arthritis due to trauma is
evaluated under Diagnostic Code 5003, degenerative arthritis.
Diagnostic Code 5003 specifies that degenerative arthritis of
a major joint be rated under the criteria for limitation of
motion of the affected joint. See 38 C.F.R. § 4.71a,
Diagnostic Codes 5003, 5010 (2005). For the purpose of
rating disabilities due to arthritis, the knee is considered
a major joint. See 38 C.F.R. § 4.45 (2005).
Degenerative arthritis established by X-ray findings will be
rated on the basis of limitation of motion under the
appropriate diagnostic codes for the specific joint or joints
involved. Where, however, the limitation of motion of the
specific joint or joints involved is noncompensable under the
appropriate diagnostic codes, a rating of 10 percent is for
application for each such major joint or group of minor
joints affected by limitation of motion, to be combined, not
added under diagnostic code 5003. 38 C.F.R. § 4.71a,
Diagnostic Code 5003 (2005).
Under Diagnostic Code 5260, limitation of flexion of the leg
provides a non-compensable rating if flexion is limited to 60
degrees, a 10 percent rating where flexion is limited to 45
degrees, a 20 percent rating where flexion is limited to
30 degrees, and a maximum 30 percent rating if flexion is
limited to 15 degrees.
Under Diagnostic Code 5261, limitation of extension of the
leg provides a non-compensable rating if extension is limited
to five degrees, a 10 percent rating if limited to 10
degrees, a 20 percent rating if limited to 15 degrees, a 30
percent rating if limited to 20 degrees, a 40 percent rating
if limited to 30 degrees, and a 50 percent rating if limited
to 45 degrees.
Normal range of motion for the knee is defined as follows:
flexion to 140 degrees and extension to 0 degrees. See 38
C.F.R. § 4.71, Plate II (2005).
Analysis
The veteran seeks entitlement to an increased rating for his
service-connected left knee disability, which is currently
separately evaluated as 30 percent disabling under Diagnostic
Code 5257 and 10 percent disabling under Diagnostic Code 5010
and also an increased rating for his service-connected right
knee disability, which is currently separately evaluated as
10 percent disabling under Diagnostic Code 5257 and 10
percent disabling under Diagnostic Code 5010 [arthritis].
Because this case involves two disabilities which are rated
under the same diagnostic codes, the Board will discuss them
together.
Assignment of diagnostic code
The assignment of a particular diagnostic code is "completely
dependent on the facts of a particular case." Butts v.
Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may
be more appropriate than another based on such factors as an
individual's relevant medical history, the diagnosis and
demonstrated symptomatology. Any change in a diagnostic code
by a VA adjudicator must be specifically explained. Pernorio
v. Derwinski, 2 Vet. App. 625, 629 (1992). In this case, the
Board has considered whether another rating code is "more
appropriate" than the one used by the RO. See Tedeschi v.
Brown, 7 Vet. App. 411, 414 (1995).
By the veteran's account, the principal manifestations of his
bilateral knee disorders are pain, loss of range of motion
and instability. Such symptoms have to some extent been
confirmed on objective examination.
The RO has applied Diagnostic Code 5257 to the veteran's left
and right knees. Diagnostic Code 5257 refers to instability;
in addition it appears to be a catchall provision which may
encompass many disabilities not otherwise provided for in the
rating schedule. As such, it appears to be the most
appropriate choice.
The veteran's knee disabilities have each been separately
rated as 10 percent disabling due to arthritis. This, too,
appears to be appropriate. The medical evidence of record,
including the April 2005 VA examination, indicates that the
veteran has been diagnosed with degenerative joint disease of
both knees. As has been discussed above, a veteran who has
arthritis and instability of the knee may be rated
separately, provided that any separate rating must be based
upon additional disability. See VAOPGCPREC 23-97 and
VAOPGCPREC 9-98.
The Board must also consider the possibility of a higher
rating under any other potentially applicable diagnostic
code, see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In
that regard the Board notes that there were no findings of
ankylosis on examination of either knee. Ankylosis is
"immobility and consolidation of a joint due to disease,
injury, surgical procedure." See Lewis v. Derwinski, 3 Vet.
App. 259 (1992) (citing Saunders Encyclopedia and Dictionary
of Medicine, Nursing, and Allied Health at 68 (4th ed.
1987)). Thus, the veteran is not entitled to an increased
rating under Diagnostic Code 5256 for ankylosis. In
addition, there is no evidence of a dislocated cartilage in
either knee as would be necessary under Diagnostic Code 5258.
In short, for reasons stated immediately above the Board
believes that the separate ratings under Diagnostic Codes
5257 and 5010-5003 which have previously been assigned by the
RO are appropriate. The veteran has not requested that
additional diagnostic codes be considered.
1. Entitlement to an increased disability rating for
service-connected left knee disability, currently evaluated
as 30 percent disabling for surgical residuals and 10 percent
disabling for traumatic degenerative joint disease.
Diagnostic Code 5257
The veteran has been granted the maximum disability rating
available under 38 C.F.R. § 4.71a, Diagnostic Code 5257, 30
percent.
Arthritis
The medical records indicate that the veteran has been
diagnosed with degenerative joint disease of the left knee.
Thus, at a minimum a 10 percent disability rating may be
assigned due to x-ray evidence of arthritis. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 (2005). The Board has further
reviewed the medical and other evidence of record in order to
determine whether a higher rating may be assigned based on
limitation of motion of the left knee. See 38 C.F.R.
§ 4.71a, Diagnostic Code 5003 (2005).
The VA examiner noted in the April 2005 examination report
that the veteran showed active extension to 5 degrees and
active flexion to 55 degrees.
In this case, at no time during the course of the appeal has
the movement of the leg been shown to be compromised to a
degree which would be compensable Diagnostic Code 5260. For
a compensable rating under Diagnostic Code 5260, flexion must
be limited to 45 degrees. The most severely limited flexion
shown on examination of the veteran's left knee has been 55
degrees. Thus, a compensable rating is not warranted under
Diagnostic 5260.
For a compensable rating under Diagnostic Code 5261,
extension must be limited to 10 degrees. The 5 degrees of
extension shown at the February 2005 VA likewise does not
allow for the assignment of a 10 percent rating under
Diagnostic Code 5261. There is no other clinical finding
indicative of more limited extension which would call for the
award of a disability rating higher than 10 percent under
Diagnostic Code 5261.
Thus, limitation of both extension and flexion of the
veteran's left knee is noncompensably disabling. See
VAOPGCPREC 9-04 (2004) [providing that limitation of flexion
and limitation of extension of the same leg may be must be
rated separately. Accordingly, the rating which must be
assigned is 10 percent, based on x-ray evidence of
degenerative joint disease of the knee under Diagnostic Code
5003.
In summary, the separate 30 percent and 10 percent schedular
ratings were appropriately assigned and will be continued.
The Board will discuss DeLuca considerations and the matter
of referral for an extraschedular rating below.
(CONTINUED ON NEXT PAGE)
2. Entitlement to an increased disability rating for
service-connected right knee disability, currently evaluated
as 10 percent disabling for instability and 10 percent
disabling for arthritis.
Diagnostic Code 5257
The veteran has been assigned a 10 percent disability rating
for mild instability experienced in his right knee. In order
to receive the next highest 20 percent rating, the medical
evidence of record would need to show moderate disability.
The words "slight", "moderate" and "severe" are not defined
in the VA Schedule for Rating Disabilities. Rather than
applying a mechanical formula, the Board must evaluate all of
the evidence, to the end that its decisions are "equitable
and just." 38 C.F.R. § 4.6 (2005). Although the word
"moderate" is not defined in VA regulations, "moderate" is
generally defined as "of average or medium quality, amount,
scope, range, etc." See Webster's New World Dictionary,
Third College Edition (1988), 871.
At the April 2005 VA examination, the examiner found
"slight" instability.
The other medical evidence of record includes July 2002 VA
treatment records and a December 2001 VA examination. Both
of those records fail to document any instability in the
veteran's right knee.
There is not of record additional treatment related to the
veteran's right knee instability. Although the veteran has
reported instances of locking, he stated at the time of the
April 2005 examination that he had not experienced any
locking recently. Moreover, he denied incidents of
subluxation in the right knee.
In short, there is not of record medical evidence showing
that instability and subluxation experienced by the veteran
is moderate or severe, such to merit the assignment of a 20
percent or 30 percent disability rating under Diagnostic Code
5257. The only assessment which shows instability at all is
by the April 2005 VA examiner, who characterized the
instability as "slight". There is no competent medical
evidence to the contrary. Therefore, the 10 percent
disability rating under Diagnostic Code 5257 is continued.
Arthritis
As indicated above, the medical records indicate that the
veteran has been diagnosed with degenerative joint disease of
the right knee. A10 percent disability rating has been
assigned due to x-ray evidence of arthritis. The Board has
further reviewed the medical and other evidence of record in
order to determine whether a higher rating may be assigned
based on limitation of motion of the right knee.
The VA examiner noted in the April 2005 examination report
that the veteran showed active extension to 5 degrees and
active flexion to 80 degrees.
For a compensable rating under Diagnostic Code 5260, flexion
must be limited to 45 degrees. Thus, a compensable rating is
not warranted under Diagnostic 5260.
For a compensable rating under Diagnostic Code 5261,
extension must be limited to 10 degrees. The 5 degrees of
extension shown at the April 2005 VA also does not allow for
the assignment of a 10 percent rating under Diagnostic Code
5261.
There is no other clinical finding indicative of more limited
extension which would call for the award of a disability
rating higher than 10 percent under Diagnostic Code 5261.
The only other measurement of right knee motion, in December
2001, shows extension to zero degrees (i.e. normal according
to 38 C.F.R. § 4.71, Plate II.) and flexion to120 degrees.
Thus, limitation of both extension and flexion of the
veteran's right knee are noncompensably disabling under the
schedular criteria. Accordingly, the rating which must be
assigned is 10 percent, based on x-ray evidence of
degenerative joint disease of the knee under Diagnostic Code
5003.
In summary, separate 10 percent ratings are appropriately
assigned under Diagnostic Codes 5257 and 5010.
Both issues
DeLuca considerations
The Board has also taken into consideration the provisions of
38 C.F.R. §§ 4.40 and 4.45 for both knees, which have been
discussed above.
The Court has held that where a diagnostic code is not
predicated on a limited range of motion alone, the provisions
of 38 C.F.R. §§ 4.40 and 4.45 do not apply. See Johnson v.
Brown, 9 Vet. App. 7, 11 (1996). Such is the case with
Diagnostic Code 5257. However, the provisions of 38 C.F.R. §
4.40 and § 4.45 are for consideration in this case with
respect to the rating under Diagnostic Code 5010.
After having carefully reviewed the record, the Board
concludes that additional compensation due to loss of
function due to pain, weakness, fatigability or
incoordination is not warranted for symptomatology associated
with the veteran's bilateral degenerative joint disease.
Specifically, as discussed in greater detail above, the
veteran experiences only a noncompensably disabling loss of
range of motion. Moreover, the veteran's testimony in
February 2004 and presentation of his condition at the April
2005 examination clearly indicates that although he
experiences flare-ups of pain and uses knee braces and a
cane, he continues to work full time and suffers disruption
only in activities such as playing sports. Moreover, and
crucially in the Board's estimation, the veteran's knees were
apparently functional enough for the veteran to be accepted
as a civilian contractor for a six month assignment in Iraq.
In short, the current 10 percent rating under DC 5010
adequately compensates the veteran for his knee disability
due to degenerative joint disease for both his left and right
knees.
Extraschedular consideration
The Court has held that the question of an extraschedular
rating is a component of a veteran's claim for an increased
rating. See Bagwell v. Brown, 9 Vet. App. 157 (1996).
Under Floyd v. Brown, 9 Vet. App. 88, 95 (1996), the Board
cannot make a determination as to an extraschedular
evaluation in the first instance. See also VAOPGCPREC 6-96.
In the July 2005 Supplemental Statement of the Case, the RO
specifically determined that the veteran's service-connected
condition does not warrant referral for extra-schedular
consideration. The Board will therefore address the
possibility of the assignment of an extraschedular rating for
both knee disabilities.
Ordinarily, the VA Schedule for Rating Disabilities will
apply unless there are exceptional or unusual factors which
would render application of the schedule impractical. See
Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to
the regulation, an extraschedular disability rating is
warranted upon a finding that "the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization that would render impractical the
application of the regular schedular standards." 38 C.F.R. §
3.321(b)(1) (2005).
The veteran has not identified any factors which may be
considered to be exceptional or unusual, and the Board has
been similarly unsuccessful. The record does not show
frequent periods of hospitalization for treatment for either
of the veteran's service-connected knee disabilities.
Indeed, there is no evidence of hospitalization during the
course of this appeal. There is also no evidence of an
unusual clinical picture, and the veteran has pointed to
none.
There is also no evidence of marked interference with
employment due to either of the veteran's knee disabilities.
Indeed, the April 2005 VA examination report documents that
the veteran has been employed full time in parts processing
and had recently returned from work as a civilian contractor
in Iraq.
The Board notes that the veteran indicated in his February
2004 testimony that he had been moved to positions that
required less physical work by his then-current employer.
However, he has continued to work full time.
The Board wishes to make it clear that it does not doubt that
the veteran's bilateral knee disabilities interfere to some
extent with his employability. However, any such
interference is reflected in the disability ratings that are
currently assigned. Loss of industrial capacity is the
principal factor in assigning schedular disability ratings.
See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1
specifically states: "[g]enerally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability." See also Moyer v. Derwinski, 2 Vet. App.
289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363
(1993) [noting that the disability rating itself is
recognition that industrial capabilities are impaired].
Thus, the Board finds nothing in the record that may be
termed exceptional or unusual so as to warrant extraschedular
ratings.
In summary, the objective medical evidence does not support
the proposition that the veteran's service-connected
bilateral knee disabilities present such an exceptional or
unusual disability picture as to render impractical the
application of the regular schedular standards so as to
warrant the assignment of an extraschedular rating under 38
C.F.R. § 3.321(b)(1) (2005). Accordingly, referral of this
case for consideration of an extraschedular evaluation is not
warranted.
Conclusion
In summary, for the reasons and bases expressed above, the
Board has concluded that a preponderance of the evidence is
against the veteran's claims of entitlement to an increased
rating for his service-connected bilateral knee disabilities.
The benefit sought on appeal is accordingly denied.
ORDER
Entitlement to an increased disability rating for the
service-connected left knee disability, currently evaluated
as 30 percent disabling for surgical residuals and
10 percent disabling for arthritis, is denied.
Entitlement to an increased disability rating for the
service-connected right knee disability, currently evaluated
as 10 percent disabling for instability and 10 percent for
arthritis, is denied.
____________________________________________
Barry F. Bohan
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs